Commonwealth v. Roundtree

¶1Opinion by

¶2On February 28, 1973, appellant was convicted in a nonjury trial of second degree murder for the stabbing *353death of one Nathaniel Davis on November 10, 1966. Following the denial of his post-trial motions, he filed a direct appeal in this Court,1 alleging that he was denied his right to a speedy trial. For the reasons stated below, we affirm.

¶3On the night of the murder, witnesses had observed the appellant and another man assaulting Davis, following an incident in a bar. Roundtree was arrested at the scene. A preliminary hearing was held later in November, 1966, and appellant was indicted for murder in December, 1966. An arraignment scheduled March 1, 1967 was aborted when appellant failed to appear; a bench warrant which was issued for him was lifted in mid-March. Whether a formal arraignment was ever held is unclear,2 but it does appear that at some point appellant was freed on bail, and remained free throughout the period preceding trial.

¶4There apparently was no action in the case until 1970, when it was listed for trial, but then continued. No further action was taken in the case until the fall of 1972, when the appellant was arrested on an unrelated charge. A routine records check divulged that there was an untried homicide charge pending against him.

¶5At the hearing on the post-trial motions, it was ascertained that while appellant had been represented by counsel at least through the preliminary hearing, he had no counsel from the spring of 1967 until October, 1972, when the court appointed his present counsel. Trial was set for December, 1972, but was continued *354because the Commonwealth could not locate its witnesses. The case was finally brought to trial on February 26,1973, over six years from the date of the killing.

¶6The sole question raised on this appeal is whether, as appellant contends, he was denied his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.3 Although the delay of over six years between arrest and trial would ordinarily act as a “triggering mechanism” to a further inquiry to determine whether appellant had been denied his right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), we need not make that further inquiry in this case, since we hold that appellant has waived his right to a speedy trial.

¶7In Pennsylvania, the proper procedure for objecting to the length of delay in being brought to trial is a motion to quash the indictment. Commonwealth v. Gates, 429 Pa. 453, 455, 240 A.2d 815 (1968); Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 503, 187 A.2d 278 (1963);4 Commonwealth v. Smihal, 182 Pa. Superior Ct. 232, 236, 126 A.2d 523 (1956). Failure to properly object constitutes a waiver of the right to a speedy trial. Gates, supra; Commonwealth ex rel. DeMoss v. Cavell, 423 Pa. 597, 601, 225 A.2d 673*355(1967); Patterson, supra; Smihal, supra, at 236-37. See also A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial §4.1 (Approved Draft, 1968). In the case at bar, appellant did not assert his right to a speedy trial either before or during trial; the issue was first formally raised in post-trial motions, after trial had been had and a verdict of guilty of second degree murder returned. The trial court was correct in concluding that this was too late.5 See Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741, 741 (1972); Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

¶8Our decision today, of course, in no way condones the inordinate delay which occurred in bringing this appellant to trial. This Court’s concern about such delays, and the steps recently taken to end them, are well known. See Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Pa. R. Crim. P. 1100, 19 P.S. Appendix (1974-75).6 While the delay in this case appears to have been due to bureaucratic *356oversight rather than to any purposeful strategy, and, as the trial court concluded, may not in fact have been prejudicial, the fact remains that a six-year delay between complaint and trial is inexcusable.

¶9Judgment affirmed.